Bliss v. Grayson

59 P. 888, 25 Nev. 329

• Court: Nevada Supreme Court
• Decided: January 5, 1900
• Docket: No. 1533.
• Status: Published

Opinions

ON PETITION FOR REHEARING.

By the Court,

Massey, J.:

The petition for a rehearing, involving practically all the questions passed upon by the court, is both voluminous and exhaustive. We do not believe it is necessary to review all the matters contained therein, as we are satisfied that the rulings made are correct, but, as it is apparent from the petition that counsel has mistaken the facts of the record, and the effect of the decision, we will consider such matters set up in the petition as relate to the mistaken facts.

The arguments of counsel with reference to the effect and scope of the order denying appellants’ motion for a new trial, and the authorities cited in support thereof, are not pertinent to the question presented in the record and decided by the court. We were not required by the record to determine whether the Dunphys, codefendants of the appellants, had abandoned their motion for a new trial, and we did not so decide. Neither was it necessary to even consider whether the record presented such a question. The record shows that the appellants and their codefendants, the Dunphys, interposed separate motions for a new trial based upon a joint statement of all the moving parties, and that the order of the court, for some reason not developed by the record, denied the motion of the appellants, and did not deny the motion of the Dunphys. To hold that the motion of the Dunphys had been denied by the order would require the interpolation of words not in the order, or that the language used in the order be given a meaning not authorized by any rule of construction. Concede, for the purpose of the argument, that the language used in the order would warrant the court in holding as counsel claim, then is respondent confronted with the fact that the Dunphys have appealed therefrom upon the same record, seeking the same relief as was asked by the appellants. They are alike interested in the reversal of the order upon the same record. Their interests are identical, and do not conflict, and are not in any sense of the word adverse within the meaning of our statute.

Taking the record as it stands, the law clearly supports the decision of the court. The Supreme Court of California has held that the notice of appeal from an order denying a motion for a new trial need only be served upon the parties to the motion in the court below. (Watson v. Sutro, 77 Cal. 609.)

The same court has held that even on an appeal by one judgment defendant from a judgment perpetually enjoining the continuance of the trespass, and for damages, a motion to dismiss the appeal based upon the fact that the notice of appeal had not been served upon codefendants and parties to the judgment should not be sustained, the codefendants not being adverse parties within the meaning of the statute. (Jackson v. Brown, 82 Cal. 277.)

Under the showing in the record we are unable to perceive how, or in what manner, the affirmance or reversal of the order appealed from can affect the interest of the Dunphys in this controversy. It will not enlarge- their liabilities or increase their burdens under the decree, neither will it change their rights under the pleadings and issues.

The claim that the notice of appeal should have been served upon the defendants as to whom the action was dismissed is equally untenable. They were dismissed upon motion by order of the court at the time the decision was rendered over the objection of the appellants. Counsel assumes in his argument that in the action of the court dismissing these defendants no other persons than the dismissed defendants could be affected in their rights. They are not parties to the decision and judgment of the court. Their interests are not determined by the decision and judgment of the court or by the order of the court denying the appellants’ motion for a new trial. The order denying the motion for a new trial and the judgment do not affect or change their rights or interests in any manner. If their interests can at all be affected, it will be only after they have been properly brought into court and after a hearing had. Under a statute in Indiana, requiring that upon an appeal by one or several parties, notice of appeal must be served upon “ all the other coparties,-” it was held by the supreme court of that state, on motion to dismiss an appeal where coparties had not all been served, that this requirement of the law applied to those coparties only who were parties to the judgment. (Lowe v. Turpie, 37 L. A. R. (Ind.) 245; Alexander v. Gill, 130 Ind. 485; Koons v. Mellett, 121 Ind. 585.)

In the State of Kansas, under a statute requiring service upon the “ adverse ” party, it has been held to the same effect. The Supreme Court of Oklahoma, under a code of civil procedure copied from the code of Kansas, has held to the same effect,'and an exhaustive review of the rule prevailing in Kansas, and in that territory, will be found in the opinion of that court in Board of Commissioners of Logan County v. Harvey, 49 Pac. 1006.

In addition to what has already been said, we cannot understand by what rule of practice, statutory or otherwise, prevailing in this state, it could be successfully claimed or maintained that the service of the notice of intention to move for a new trial, or the service of the notice of appeal upon a person not a party to the judgment and the action at the time of such service, would confer jurisdiction upon the trial or appellate court over such person so as to enable either to determine any matter presented by the motion for a new trial, or in any manner make any order or judgment affecting the rights of such person by which he would be bound. Neither are we able to understand, as applying to the further claim of the respondent in his petition, under what rule of law prevailing in this state could it he maintained that the reversal of the order denying the motion for a new trial would operate to restore parties to the action who are not parties to the judgment, and who were not parties to the action at the time the motion was interposed and the order denied.

Neither do we know of any rule of law prevailing in this state that would compel a person not a party to an action or judgment to come into the trial court and be heard under such service of notice of motion or notice of appeal, or, on failure so to do, bar him of a hearing as to the matters determined in the case. These defendants, dismissed by the action of the court, before judgment, and before the motion for a new trial was interposed, are as much strangers to the record as they would be had they never been served.

It is further claimed in the petition that the failure of the appellants to serve the Dunphys, their codefendants, with notice of intention to move for a new trial warrants this court in dismissing the appeal. This question is not new so far as this court is concerned, and has been directly passed upon by the Supreme Court of California. In Watson v. Sutro, supra, it was held, in effect, that if the notice of intention to move for a new trial was not served on all the proper parties, the matter is one for consideration on the hearing of the appeal and is not ground for dismissal. Conceding, for the argument, that the Dunphys should have been served with a notice of intention to move for a new trial, the respondent cannot complain of such failure, nor can the Dunphys, as they waived such service by joining in the statement on motion for a new trial. That such service could be waived, or the notice itself waived, is amply supported by authority. (Dominguez v. Mascotti, 74 Cal. 269; Beck v. Thompson, 22 Nev. 109.)

The further claim is made that it appearing that the order of dismissal had been consented to by some of the defendants, it is binding on those objecting thereto, they not having appealed therefrom within the statutory time. It is not necessary to discuss the question whether or not the order of dismissal is appealable under our statute. The order was made upon motion before judgment. The appeal is not from the judgment and the order of dismissal. The cases cited in support of respondent’s contention contain, we presume, the correct rule of law to be applied in a proper case, but there is a plain and clear distinction between the cases cited and the case at bar. A brief review of some of the cases cited will readily make this distinction clear.

In U. P. Railway Company v. McCarthy, 8 Kan. 126, it was sought in an action brought upon the judgment, under an answer of general denial, to review alleged errors in the judgment sued upon, and the court held that such errors could not be reviewed in the action — that, where it appeared that the trial court had jurisdiction of the subject matter and of the parties, its judgment was final and conclusive.

Regarding the case of Clyburn v. Reynolds, 9 S. E. Rep. 973, it is' sufficient to say that the court there held that a decree recited to be by the consent of the “defendants’ solicitors ” will be presumed to have been consented to only by those defendants who have appeared in the suit.

In the case at bar the consent of the appellants to the order of dismissal is directly negatived by the record. It was made over and against their objections without their consent.

A quotation from the opinion in Fletcher v. Holmes, 25 Ind. 463, will sufficiently distinguish that case: “We can conceive of no reason why a judgment entered by agreement by a court of general jurisdiction having power in a proper case to render such a judgment, and having the parties before it, should not bind those by whose agreement it is entered, notwithstanding the pleadings would not, in a contested case, authorize such a judgment.”

It is not necessary to discuss further the cases cited, as we think it sufficiently appears that they have no application whatever to the case at bar, however forceful the rules may have been in the cases decided.

The further contention of the respondent, relating to the matters that can properly be considered and determined under an appeal from an order denying a motion for a new trial, is not in all respects an open one, and has, to some extent, been considered and passed upon by this court.

The notice of intention to move for a new trial recites, among other matters, the insufficiency of the evidence to justify the decision of the court; the insufficiency of the evidence to justify the findings, or any of the findings, made by the court; that the decision of the court is against the law, and that the judgment and decree are against the law. The assignment of errors, found in the record on pages 1353 to 1361 covering these grounds, upon which the motion is based, are full and explicit, setting out, in some instances, the particular point of the alleged errors. The decision of the court, rendered on the 12th day of June, 1896, and recited as hav ing been entered in the minutes of the court, is found in the statement on motion for a new trial on pages 1 to 5, inclusive, and shows the determination of the facts and law by the court in precise and exact terms. The written findings of fact and conclusions of law were filed on the 17th day of, August, 1896, and are found in the statement on motion for a new trial, on pages 6 to 15, inclusive. The judgment and decree ordered are found in the statement, on pages 16 to 20, inclusive. The order dismissing Blossom, et al., from the action is also found in the minutes of the court set out in the statement on motion for a new trial of the date on which the decision was rendered.

The respondent cites a number of decisions of the Supreme Court of California to the effect that, on an appeal from an order denying a motion for a new trial, the appellate court will not consider, and has no power to consider, the sufficiency of the pleadings or errors appearing in the judgment roll. It is not necessary to say what the rule should be in the cases cited, as those questions are not in this case and were not decided by this court. This court will, in such appeal, as do the courts of California, examine the pleadings to ascertain what the issues were with reference to the decision announced by the court. Upon some of the questions of practice in proceedings of this character, under our statute regulating the practice in appeals from orders denying a motion for a new trial, the decisions, of this court are not, or seem not to be, in harmony with the rules announced by the decisions of the Supreme Court of California; and we must, in all cases where there is, or seems to be, a conflict in decision between this court and the courts of other states, follow the rule announced by this court. Under subdivision 4 of section 659 of the code of civil procedure of California, found in Deering’s Annotated Code, the court of that state has given a meaning to the word “decision,” used therein, as the facts found and conclusions of law provided for in section 633 of the same act. (Covney v. Hale, 49 Cal. 555; Dominguez v. Mascotti, 74 Cal. 269.]

This court has given a different meaning to the same word used in the same connection. It is said by the court: “The decision is the announcement by the court of its judgment, and, although based upon the settled facts of the case, such facts may never be reduced to writing so as to constitute findings within the meaning of that term as used in the civil practice act.” (Elder v. Frevert, 18 Nev. 283.)

The above rule was followed and approved by this court in Robinson v. Benson, 19 Nev. 331, also in the recent case of Robinson v. Kind, 25 Nev. 261, 59 Pac. 863.

Further, an examination of the provisions of our statutes regulating the practice in matters of this character will, as we believe, conclusively show that the decision of this case upon a former hearing is clearly within its scope and authority, and against the claim of the respondent. We are also of the opinion that the rule has been declared by this court against respondent’s contention. By subdivision 6 of section 195 of our statutes (Gen. Stats. 3217) it is provided that the former verdict or other decision may be vacated and a new trial granted for the insufficiency of the evidence to justify the verdict or other decision, or that it is against the law. Section 197 of the same act, providing the method of procedure for the presentation of questions to the trial and appellate courts, under a motion for a new trial, as amended in 1893 (Stats. 1893, p. 89), requires, among other matters, that “ when the notice designates, as a ground upon which the motion will be made, the insufficiency of the evidence to justify the verdict or other decision, it shall be a sufficient assignment of error to specify that the verdict of the jury, or the decision, or judgment, or decree of the court, is not supported by the evidence, or is contrary to the evidence. In such case, where it appears that the evidence taken all together does not support the verdict, or decision, or judgment, or decree of the court, a new trial shall be granted, or upon appeal the case shall be reversed without regard to whether there are express findings upon 'all the issues, or whether the specifications particularly point out the finding or findings, either express or implied, that are not supported by the evidence, or are contrary thereto.”

The language used as quoted in this section is clear; it cannot be misunderstood. It is broad, and, taken in connection with the language used in subdivision 6 of section 195, above referred to,.defines explicitly the meaning of the words “ other decision ” used' therein. If this amended section means anything, it means that under a specification provided for in said subdivision 6, to the effect that the evidence is insufficient to justify the decision and is against the law, under a proper record on motion for a new trial and from an order denying the same, the appellate court is authorized to inquire into the evidence for the purpose of ascertaining whether the decision, as defined in Elder v. Frevert, supra, or the judgment, or decree of the court, is not supported by the evidence, or is against the law. This is the rule of our written law in direct terms, and it is not necessary to enter into a review or discussion of the decisions of the courts of other states having, perhaps, statutes using different language and intended to provide a different method of procedure. Even before the amendment to section 197 became the law, this court held that, under the assignment or specification designated in subdivision 6 of said section 195, the court would decide whether the findings sustained the judgment on an appeal from an order denying a motion for a new trial, and that the action of the trial court in this respect was properly reviewable thereunder. (Barnes v. Sabron, 10 Nev. 248.)

This decision was made before the amendment referred to was passed, and the rule was quoted with approval in Marshall v. Golden Fleece M. Co., 16 Nev. 173. It is safe, therefore, to conclude that the tendency of this court to construe liberally “other decision,” as used in section 195, was followed by the legislature in its amendment to section 197 of the same act.

Having considered all those points in the petition that seem to possess merit, and believing that the former decision is correct, the application for a rehearing will be denied.

Belknap, J.: I concur.